Guardianships

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Transcript of Guardianships

Neil Bowman-DavisGuardianshipPolicy – a child must have a responsible adult for their care and supportParents possess the exclusive right to make decisions regarding care, custody & control in all facets of their livesOther family members or friends may care or support the child, but have no legal right to make critical or everyday decisionsWhy Guardianship?Common scenariosParent diesParent incarceratedDependency proceeding for abuse or neglectParent not capable of providing care

Guardianship is mechanism that legally transfers the rights and responsibilities of parents to some other personNot every child has a responsible parentGuardianship of the PersonSuspends rights of parentsGuardian replaces parents for all purposesFundamental obligationsCare, custody & control of the minorProvides food, clothing & shelterProvides medical & dental needs

Guardianship of the EstateAdditional responsibility of managing estateTypes of GuardianshipsResidenceRight to determine where child livesCANNOT move out of state without court approval

Medical TreatmentAuthority to consent if < 14If 14 or older, must have minor’s consent or court orderCustodyFull legal & physical custody to guardianVisitation may be granted to parents or other family members to preserve relationships

Enlistment in ServicesUpon entry, child emancipatesFinancial SupportParents still obligated to provide supportGuardian may obtain support from parentsGuardian may apply for public benefits for minorTemporaryUrgent but not emergencyWithin 7 to 10 daysNotice to parents required

GeneralWithin 30 daysNotice to second degree relatives requiredHow long does it take?ResponsibilitiesPrepare inventory & valuation of assetsFile Inventory & AppraisalProvide adequate insurance coverageMaintain financial recordsFile accountingsMake prudent investmentsKeep assets separateUse interest bearing accountsNo gifts Court approval required for payment of any feesGuardian of the Estate- DutiesPetition & Supporting DocumentationIdentifies parties, family members, and others who may be entitled to noticeIndicates whether other existing casesSpecifies need for the Guardianship and the relationship to the PetitionerHow do you start the process?Interim OrdersCourt Investigation Social history of guardian, ward and parentsAnticipated durationReport prepared and filed court

CPS InvestigationScreens for prior referrals of neglect or abuseIf non-relative, Foster Home Licensure ScreeningReport prepared and filed with courtWhat happens before court?UncontestedLetters of Guardianship issueMay order referral to mediation

ContestedCourt determines if good cause to suspend the rights of parentsLetters of Guardianship issue May order referral to mediationAt the hearingBefore guardianship granted, court must findGranting custody to parent would be detrimental to childGranting custody to guardian is required to serve child’s best interest

Policy favors stability in child’s lifePresumed detrimental if guardian has assumed on a day-to-day basis the role of parent who has fulfilled the physical and psychological needs of the child for a substantial period of timeWhat the court decidesIf the court grants guardianship, court may order visitation between parent and childCourt may refer parties to Family Court Services for mediationMediation can assist parties define visitation scheduleVisitation can be supervised or unsupervised, depending upon needs of the parties.Court may grant visits to parentsGuardianship continues untilMinor emancipatesReaches age 18Court order

Termination ProceedingPetition detailing why guardianship should terminateMay be contested or uncontestedTermination of GuardianshipCourt must find that is in best interest of child to terminate the GuardianshipBurden is placed on parent to show overall moral fitness, not just a change in one aspect of their lifeContinuity and stability importantBalance: the longer the guardianship is in place, the greater the showing needed to terminateTermination StandardsGuardian may make relationship permanentWhile guardianship in placeGuardians are not financially responsibleBirth parents still obligated to supportBirth parents rights suspended, but still intact

If AdoptedAdoptive parents become financially responsibleBirth parents relieved of future financial obligationRights of birth parents are forever terminatedAdoptionTiming of adoption petition depends upon how guardianship imposed

In most cases, the guardian may petition for adoption after 1 yearWhen can guardian file for adoption?Gather informationAssess urgency Discuss alternativesIdentify missing information Assign homeworkAssemble paperworkInstruct regarding filing and serviceHow our office can helpWe are not their attorneyThere is no attorney-client relationshipOur conversations are not confidentialWe do not give legal adviceWe will not appear in court on their behalfIf requested, we will provide assistance to the other side of their legal issueWhat we cannot do825 Brown StreetNapa, CA 94559(707) 299-1137Neil.Bowman-Davis@napacourt.comNeil Bowman-DavisFamily Law FacilitatorNapa Superior Court